AHPA president Michael McGuffin was speaking to NutraIngredients-USA as details emerged of the latest batch of Prop 65 settlements paid by dietary supplement firms targeted by private plaintiff the Environmental Research Center (ERC).
Prop 65 requires manufacturers selling products in California to include warning labels on products if they contain any detectable amount of 800+ chemicals believed to cause cancer or reproductive toxicity.
While the legislation isn’t new, supplement makers have recently found themselves at the receiving end of a tidal wave of prop 65 notices filed by the ERC, most of which concerned lead, the Prop 65 threshold for which is just 0.5 micrograms per serving.
California attorney general’s office was ‘receptive’
As a result, McGuffin and Trent Norris, a partner at law firm Arnold & Porter, recently met with the office of the California attorney general to discuss the merits of a statement including additional “contextual information” on warning labels about lead.
This would declare that the level of lead was less than ‘x’ micrograms, where ‘x’ is a low level, such as 2 to 3 micrograms, he said: “Clearly if there is 20, 40, 60 or 200 micrograms in your product, it should not be in the marketplace, but if we’re talking about 2 micrograms, that’s different.
“They said to us, if you’re saying 0.5 is not achievable, but 1, 2 or 3mcg is, maybe we can talk. Go find the data [on lead levels found in finished products] to back up what you’re saying. So that’s what we’re doing. I don’t know what the outcome will be, but they were receptive to what we were proposing.”
As to whether supplement firms would be happy to use such wording on their products, he said: “Firms already using Prop 65 warning labels say yes. But for those that are not, there has also been interest.”
Average settlement amount: $66,250
Writing in the November issue of the AHPA report, AHPA information analyst Dr Merle Zimmermann notes that record numbers of Prop 65 notices have been filed against supplement makers this year, the vast majority of which were issued by the ERC.
The average settlement amount was $66,250, with most requiring firms to provide the results of mandatory lead tests to the ERC for periods of up to two years from the settlement date.
If you’re a small business, $60-80,000 fine is unaffordable
As a result, many firms were now seriously considering adding warning labels to products rather than face litigation, said McGuffin. “If I were in business I’d probably test market some products that were not key to my business with warning labels and see how it affected sales.”
He added: “Some people just say it’s a cost of doing business, that once in a while you’re going to get sued under Prop 65 and you’ll have to settle. But if you’re a small company a fine of $60-80,000 is not affordable."
Speculating over the motivations of ERC boss Chris Heptinstall, who has been accused by some of “bounty hunting” after issuing well over 200 Prop 65 notices, was not helpful, said McGuffin.
“Whether you want to call what he’s doing legalized blackmail or an act of public service is irrelevant. What matters is that he’s continuing to do it.”
Where is the ERC purchasing its products for Prop 65 testing?
While the ERC is registered in California, Heptinstall is based in Georgia, prompting some industry sources to query whether all of the products he has sent to laboratories for testing were actually purchased in California.
If they were not, this could raise questions over the validity of his claims, as the alleged violations cited in Prop 65 notices must take place in California, they argue.
Heptinstall was unavailable for comment as this article went to press.